Bombay High Court
United India Insurance Company Ltd ... vs Sandu Tukaram Jadhav And Ors on 29 September, 2025
2025:BHC-AUG:26801
(1) fa746.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 746 OF 2011
WITH
CIVIL APPLICATION NO. 5025 OF 2011
United India Insurance Company Ltd., .. Appellant
Through its Divisional Manager, [original Res.
Seven Hills, Jalna Road, Aurangabad. No.4]
Versus
1) Sandu s/o. Tukaram Jadhav .. Respondents
Age. 46 years, Occ. Service & [Resp.No.1 -
Vegetable Wholesale Merchant, ori.claimant,
R/o. Anva,Taluka Bhokardhan, Res.2 to 4 -
District Jalna. Ori. Res.No.
1 to 3]
2) Balaji s/o. Nivrutti Khandebharad
Age. Major, Occ. Driver & Owner,
R/o. Kumbhari, Taluka Devalgaonraja,
District Buldhana.
3) The New India Assurance Company
Through its Senior Divisional Manager,
Division Office, Adalat Road, Aurangabad.
4) Santosh s/o. Kondiba Sapkal
Age. Major, Occ. Owner,
R/o. Anva, Taluka Bhokardan,
District Jalna.
WITH
(2) fa746.11
FIRST APPEAL NO. 2186 OF 2012
WITH
CIVIL APPLICATION NO. 7588 OF 2011
The New India Assurance Co. Ltd. .. Appellant
Through its Div. Manager. Div. Office, [ori.res. No.2]
Adalat Road, Aurangabad
Through its authorised signatory,
Mr. Sanjiv s/o. Ramrao Gaisamudre
Age. 51 yrs., Occ. Service, Sr.Div. Manager,
New India Assurance Co. Ltd., R/o. Aurangabad.
Versus
1) Sandu s/o. Tukaram Jadhav .. Respondents
Age.47 years, Occ.Service & Merchant [Resp.No.1 -
R/o. Anva,Taluka Bhokardhan, & Resp.1,2 &4]
District Jalna.
2) Balaji s/o. Nivrutti Khandebharad
Age. 48, Occ. Driver/Owner,
R/o. Kumbhari, Taluka Devalgaonraja,
District Buldhana.
3) Santosh s/o. Kondiba Sapkal
Age. 51, Occ. Owner,
R/o. Anva, Taluka Bhokardan,
District Jalna.
4) United India Insurance Co. Ltd.,
Through its Sr. Div. Manager,
Div. Office, Osmanpura Circle,
Aurangabad.
Mr. A.G. Kanade, Advocate for appellant in FA No.746/2011 (through VC)
Mr.D.P. Deshpande, Advocate for appellant in FA No.2186/2012 (through VC).
Mr. S.K.Shirse h/f. Mr. P.F. Patni, Advocate for respondent No.1.
Mr. L.S. Shaikh h/f. Mr. V.P. Golewar, Advocate for respondent No.2.
Mr. Shubham K. Shinde h/f. Mr. R.V. Gore, Advocate for respondent No.3.
(3) fa746.11
CORAM : KISHORE C. SANT, J.
RESERVED ON : 14.07.2025
PRONOUNCED ON : 29.09.2025
JUDGMENT :
-
01. These appeals are filed by the Insurance Companies
challenging a judgment and award passed by the learned Motor Accident
Claims Tribunal, Aurangabad, in MACP No. 727 of 2007. By way of the
impugned judgment and award, the learned Member of the Tribunal has
allowed claim petition filed by present respondent No.1 directing the
insurance company to pay Rs. 9,06,800/- towards compensation
including 'no fault liability' with interest @ 10% p.a. from the date of
application. Along with allied directions, it was further directed that if the
amount is not deposited within one month from the date of the order, the
amount will carry interest @ 12% p.a.
02. Facts giving rise in short are that the claimant was travelling
in his Tata 407 truck bearing No. MH-21-5492. While returning from
Akola near Dargadwadi Shivar on Devalgaonraja to Chikhali road,
suddenly Tata Truck No. MH-21-6423 gave dash to their vehicle. Said
vehicle was driven by respondent - Balaji. In First Appeal No. 746 of
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2011 respondent No.1 is original claimant, respondent No.2 is original
respondent No.1 - owner of other vehicle, respondent No.3 is original
respondent No.2, respondent No.4 is original respondent No.3. After the
accident, the claimant was removed from the vehicle by police and was
admitted to the hospital at Primary Health Center, Devalgaonraja. From
there, he was shifted to Civil Hospital at Jalna. Thereafter, he was shifted
to Vargantvar Hospital, Aurangabad. He was there for 12 days. In the
accident he suffered 100% loss of earning capacity. The claimant,
therefore, filed claim petition in Aurangabad. The claimant claimed Rs.
10 lakhs towards compensation. It is his case that he was earning Rs. 2
lakhs per year from doing the business of sale of vegetable.
03. The learned Tribunal held that the driver of truck No. MH-21-
6423 i.e. driven by respondent No.1 and the claimant suffered grievous
injuries. It is held that the driver of second vehicle was rash and
negligent. It is further held that the claimant is entitled to receive
compensation. So far as loss of earning capacity is concerned, the
learned Tribunal held that the claimant would be entitled to receive
compensation. The learned Tribunal held that the disability suffered by
the claimant is to the extent of 90%. It is held that the annual income of
the claimant is Rs. 54,000/- and considering the age, multiplier of 13 is
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applied. In addition to that Rs. 2,75,000/- is awarded towards medical
expenses and granted total amount of Rs. 9,06,800/-.
04. It is case of the insurance company that the accident took
place between two vehicle. The respondent-claimant was travelling in
vehicle bearing No. MH-21-5419. The claimant was also negligent and
therefore the liability would come on the insurance company of the
vehicle of the claimant. In the first vehicle the claimant was travelling as
gratuitous passenger. In view of that risk is not covered for breach of
condition and therefore the appellant is not liable to pay compensation.
The Tribunal has wrongly granted the amount as jointly and severally. On
merits he submits that the Doctor who gave certificate of disability is not
the Doctor who treated the patient and therefore evidence of such Doctor
ought to have been discarded. The age of the claimant is shown to be 60
- 65 years on the medical papers. Therefore, multiplier of 13 is wrongly
applied.
05. First Appeal No. 2186 of 2012 is filed by the New India
Assurance Co. Ltd., the insurer of truck bearing No. MH-21-5492.
Learned Advocate Mr. Deshpande for the appellant argued that from the
evidence of the claimant and especially from the cross-examination, it is
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seen that he was sitting at the rear side of the vehicle and therefore
could not see the accident. A criminal complaint was filed only against
owner of the vehicle bearing No. MH-21-5492. With the help of judgment
of the Hon'ble Supreme Court in the case of Oriental Insurance Co.
Ltd. Vs. Premlata Shukla and Ors., (2007) 13 SCC 476, he submits
that no liability would come on the New India Assurance Co. Ltd. Not a
single person from vehicle No. MH-21-6423 is examined by the claimant.
If the entire FIR is seen, it is clear that it is the owner of vehicle No. MH-
21-5492 is liable. He also relied upon judgment in the case of Lachoo
Ram and Ors. Vs. Himachal Road Transport Corporation, (2014)
13 SCC 254. He thus submits that liability at the most, would be on the
vehicle in which the claimant was travelling. There is no fault of vehicle
No. MH-21-6423 proved. No medical bills are produced. He submits that
in no case the liability would come on the New India Assurance Co. Ltd.
06. Learned Advocate Mr. Shirse h/f. Mr. P.F.Patni for original
claimant vehemently submits that this is clearly a case of composite
negligence. The claimant was not driving the vehicle. He relied upon
cross of the claimant to submit that so far as age is concerned, there is
no suggestion about the age of the claimant and about disability suffered
by him. He has denied the suggestion about negligence on the part of
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the vehicle in which the claimant was travelling. The learned Judge has
rightly considered all the factors. The deceased is suffering from
paraplegia and for that now there is no treatment available. 90%
disability suffered by the claimant is of permanent nature. He thus
submits that learned Tribunal has rightly passed the order and opposes
the appeal.
07. Heard learned Advocates for the parties. The claimant has
examined three witnesses in support of his case. He examined himself
as PW-1, PW-2 is Punjaji Pandurang Sonavane a shop-owner of pesticides
shop. PW-3 is Dr. Jaiswal, who issued certificate of disability. He proved
injury certificate showing disability, FIR, Medical Bills, Salary Certificate
etc. The respondents have not produced any evidence as such. Neither
they have examined any witness.
08. PW-1 in his evidence has stated that he along with three
other persons were travelling in MH-21-5492. They met with an accident
with vehicle No. MH-21-6423. On the date of accident, he received
injuries. He was taken to hospital. He spent an amount of Rs.
2,75,000/- for hospitalization, medication etc. He thus prays
compensation of Rs. 35,75,000/-. He proved insurance policy etc. In
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the cross by New India Assurance Co., it has come on record that he was
sitting at the rear side of the vehicle. It was not fault of the truck driver
in which he was travelling. It is the driver of another vehicle, who was
responsible for the accident. Except suggestion, there is nothing in the
cross-examination. In the cross by respondent - United India Insurance
Co. it is taken that three persons were travelling in tempo including
driver. There was no goods in the tempo and it was empty.
09. PW-2 Punjaji Sonawane stated that he knows the claimant,
who was working in his shop. He used to pay salary of Rs. 4500/- per
month. He proved salary certificate Exh.60. He also stated that from
the date of the accident, complainant has not come to the shop.
10. PW-3 Parmeshwar Jaiswal, an Orthopedic Surgeon, stated
that the claimant sustained 90% disability and there is no possibility of
any improvement in the condition of patient. He proved Exh.62. In the
cross-examination by respondent No.2, it is only asked that the claimant
has not taken any treatment from him. He has not taken any x-ray. It
has come in the cross that he verified the x-ray of the patient. By the
other insurance company he was not cross-examined and the cross by
respondent No.2 was adopted.
(9) fa746.11
11. In the case of Andhra Pradesh State Road Transport
Corporation and Anr. Vs. K. Hemlatha and Ors., (2008) 6 SCC 767,
the Hon'ble Apex Court was considering the case of contributory
negligence and computation of amount of compensation. It is held that
composite negligence is a negligence on the part of two or more persons.
Injury to a person is result of negligence on the part of such wrong
doers. In such case, it is called as composite negligence and held that in
such case, all persons are jointly and severally liable for payment to the
injured of the entire damages. In such case, it is injured who has a
choice to proceed against all or any of them. It is not for the claimant to
prove the accident and liability of each wrong-doer separately.
12. Reliance is placed upon judgment in the case of T.O.
Anthony Vs. Karvarnan and Ors., (2008) 3 SCC 748. In the said
case, the accident was head-on collision of bus of Kerala State Transport
Corporation with a private bus, in which the appellant received a facture.
The Hon'ble Supreme Court in that case held that the accident occurred
due to contributory and composite negligence of bus drivers of both the
vehicles. The liability was fasten to 50% each and deducted 50% of the
amount for appellant's negligence. The Hon'ble Apex Court did not
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disturb the finding regarding negligence and enhanced compensation. It
is held that the composite negligence and contributory negligence are not
one and same. Composite negligence is when a person receives injury
where two or more other persons are involved. Contributory negligence
is the negligence where claimant himself is also liable for the accident. It
is only in the cases where the claimant himself is found to be responsible
is a case of contributory negligence.
13. So far as judgment in the case of Khenyei Vs. New India
Assurance Co. Ltd. & Ors., (2015) 9 SCC 273 is concerned, the
Hon'ble Supreme Court held that the claimant is entitled to sue any of
the tortfeasor or all of them for recovery of compensation. He need not
prove or establish the liability of each of them separately and he can sue
any one of them or all of them.
14. In the case of Premlata Shukla (supra) it is held that the
document once proved needs to be read in its entirety. Only some
portion of the document cannot be relied upon by ignoring any provision.
There is no dispute about the same.
15. In the case of Lachoo Ram (supra), the Hon'ble Supreme
( 11 ) fa746.11
Court dealt with the appeals filed by the claimants aggrieved by the
judgment and order by the High Court reversing the finding given by the
Motor Accident Claims Tribunal and set aside the award to some extent.
It is held that mere involvement of the bus in the accident cannot make
owner liable to pay compensation unless it is established on record by
producing material that the accident is caused by rash and negligent act
of the driver. In that case the bus was standing at the red light and after
starting from traffic signal, it stopped almost 100 -150 yards away from
Gurudwara. It is held that the bus could not have started in high speed.
The accident occurred admittedly on narrow road. It was brought on
record that the bus driver had not given signal to the motorcyclist to
overtake it. In that case the witness could not see the actual incident.
The motor cyclist on an attempt to overtake the bus had crushed. The
witness only heard sound of crush. In that case, it was not a case that
driver did not take any sudden turn for proceeding forward from traffic
signal that he moved the bus right side in sudden manner.
16. In the present case, it has already come on record that the
claimant was not driving the vehicle. He was sitting at the rear side.
Thus, there is no question of contributory negligence. Present case is
thus a clear case of composite negligence. This Court does not find any
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reason calling for interference at the hands of this Court. Consequently,
both the first appeals stand dismissed with no order as to costs.
17. In view of dismissal of the first appeals, connected civil
applications do not survive and are accordingly disposed off.
[KISHORE C. SANT, J.]
snk/2025/Sep25/fa746.11
